Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)

This time, the Supreme Court may have to decide what the Second Amendment means. But how much will really change?

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” U.S. Constitution, Amendment II

Earlier this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the District of Columbia’s stringent gun-control regulations, ruling squarely that the Second Amendment protects an individual’s right to bear arms.

In the cultural and legal battle over gun control, the decision was the proverbial shot heard ’round the world.

The ruling—in Parker v. District of Columbia—marked the first time a gun law has been found unconstitutional based on the Second Amendment, and it set up a direct conflict among the circuits. Nine federal appeals courts around the nation have adopted the view that the amendment guarantees only the collective right of organized state militias to bear arms, not an individual’s right. (A 5th Circuit panel found that individuals have gun rights but upheld the regulation in question, so both sides claim that ruling as a victory.)

In May, when the full D.C. Circuit Court refused to grant a rehearing en banc, the stage seemed set for a showdown in the Supreme Court, which has thus far managed to dodge the question of whether the Second Amendment guarantees an individual’s right to bear arms.

According to HLS Professor Mark Tushnet, author of “Out of Range: Why the Constitution Can’t End the Battle Over Guns” (Oxford University Press, 2007), earlier petitions were cluttered by issues that allowed the Court to decline review or avoid the Second Amendment question. But Parker “is more straightforward,” Tushnet says, and the Court will have a tougher time avoiding the issue.

If Parker is the long-awaited “clean” case, one reason may be that lawyers for the National Rifle Association—who helped steer the legal strategy of the plaintiffs and backed them financially—have learned from earlier defeats, and crafted the case to maximize the chances of Supreme Court review. For one thing, it is a civil case, not a criminal one, and the six plaintiffs, in the words of NRA President Sandra Froman ’74, are “ordinary people whose lives are impacted by not having the right to protect themselves.” They include a woman who lives in a high-crime area and has been threatened by drug dealers, a gay man assaulted because of his sexual orientation and a special police officer for the Federal Judicial Center.

In addition, the laws challenged in Parker are among the most stringent in the nation: Handguns cannot be registered in the district; those registered before a 1976 ban cannot be carried from one room to another without a license; and any firearm in a home must be kept unloaded and either locked or disassembled.

Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesn’t involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendment—a question that clouded an earlier case involving one city’s complete ban on handgun possession. He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one.

Pro-gun activists like Froman are confident that the Court will hear an appeal by the district in Parker, and they say that they couldn’t have gotten this far without help from an unlikely quarter: liberal law professors. In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview. “I have always supported as a matter of policy very comprehensive gun control.”

Froman says the fact that Tribe and others reversed their interpretation in recent years has had enormous influence. Indeed, the majority opinion in Parker, written by Judge Laurence H. Silberman ’61, referred specifically to Tribe’s revised conclusion.

The 27 words of the Second Amendment may be the most hotly contested in the Constitution. Gun-control advocates and opponents read its tortured syntax entirely differently. Each side resorts to what Tushnet calls “a simplified version of constitutional analysis” to support its viewpoint, looking solely at the wording of the amendment and what the language meant in 1791 rather than at whether society has changed in the meantime and what judicial precedents offer guidance. In “virtually no other area in constitutional law” is analysis done that way, he says, although he’s not sure why.

“There’s very little guidance on what the actual meaning of the Second Amendment is,” says Froman, a Tucson lawyer who was interviewed by the Bulletin when she returned to HLS in early April to speak on a panel. “The courts have talked a lot about the Second Amendment but have always been nibbling around the periphery. There’s never really been ‘Let’s explain and elaborate on what it means.’”

For Anthony A. Williams ’87, who served as mayor of the District of Columbia from 1999 until earlier this year and vigorously enforced the district’s gun laws during his tenure, the meaning of the amendment is unambiguous, no matter what interpretive theory is used. “Let’s take [Justice Antonin] Scalia’s approach,” he says. “I think the framers’ intent was to see to it that [through] militias, states as sovereign entities had a right to arm themselves. To me, it’s not about individuals—it’s about groups.”

But Froman firmly reaches the opposite conclusion: “A lot of people say that the prefatory clause of the Second Amendment—the words ‘A well regulated militia …’— limits the active clause pertaining to bearing arms. They want to say that means you can only exercise the right to keep and bear arms as part of a militia, meaning as part of the National Guard, forgetting that the National Guard didn’t exist then.”

“Remember,” Froman adds, “the Second Amendment guarantees a right—it does not confer a right. It’s God-given. It’s natural. The right of self-survival is a basic instinct of any organism.” The Constitution “acknowledges that.”

Tushnet believes that if the Court grants certiorari, it will ultimately overturn the decision of the D.C. panel. “My gut feeling is that there are not five votes to say the individual-rights position is correct,” he says. “[Justice Anthony] Kennedy comes from a segment of the Republican Party that is not rabidly pro-gun rights and indeed probably is sympathetic to hunters but not terribly sympathetic to handgun owners. Then the standard liberals will probably say ‘collective rights.’”

But Tribe is less confident of that prediction. Should the case reach the Supreme Court, he told The New York Times, “there’s a really quite decent chance that it will be affirmed.”

If that happens, Tushnet says, it is unlikely to end all gun regulation, because the Court would probably tailor its decision narrowly to reach consensus. The three-judge panel in Parker struck down only D.C.’s tight laws. “Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible,” he says.

Tushnet says the gun-control debate is an intractable one in which neither side will move, and a constitutional “answer” from the Supreme Court will be something of a nonstarter. Like the arguments over abortion and stem-cell research, he says, the argument over guns is in truth another battle in the culture wars and cannot be solved by constitutional analysis because neither side can be persuaded.

No gun-control strategy with any chance of surviving the political process would have a significant effect on overall gun violence or crime, Tushnet believes. To say so publicly would be the boldest and most honest stand that a major politician or candidate could take, he adds.

The tragic shootings on the campus of Virginia Tech seem to have changed no one’s position: “People responded to it in exactly the way you would expect,” Tushnet says. Supporters of gun control sought stricter laws and better enforcement, and the NRA advocated that teachers and others be armed to protect themselves.

Activists on both sides bear out that observation. Williams believes that the district’s gun laws were having a demonstrable effect on gun-related violence. “When I started as mayor, we had well over 200 homicides a year,” he says. “We brought that down to below 160, so we made serious inroads in reducing violent crime; but still, in many neighborhoods, the situation is horrific.”

Says Froman: “Statistically, the parts of the country with the greatest number of firearms have the lowest rates of violent crime with guns. It’s easy to understand why. Let’s say there were 30 people in this room, and this was a state that allowed people to carry concealed weapons for self-defense, and a criminal walked in. At least half the people in the room would draw down on the criminal. That would be the end of it.”

Froman had nothing to do with guns until, some 25 years ago, someone tried to break into her Los Angeles home. “I was terrified,” she says. “It was a real epiphany for me, for someone who had never been a victim of crime, who never thought I needed to protect myself.” The next day, she walked into a gun shop to purchase a weapon. She has been a staunch gun advocate ever since.

Does Froman ever worry about repercussions, given that she’s at the center of such a heated issue? “I live in a very rural area, at the end of a long driveway,” she says. “People ask me, ‘Don’t you get scared?’ I say, ‘Are you kidding? I have a clear shot all the way to the road.'

Then you do believe that an amendment protecting the right to own and read books, if it mentioned the importance of a well-educated electorate, would permit the prohibition of books which are not political?

"I don't find it productive to debate ..."

The definition of "the people" is the crux of the debate.

Now, if you're going to insist "the people" is everyone, fine. Of course you can't support that, so I can understand why you want to take back your ball and go home.

But if you expect me to take you seriously, you'll have to do much better than that.

That’s my feeling as well. While I think we’re in better position now than in decades, and would be cautiously optimistic, I’d want one more reliably Constitutional vote before I’d actively wish for a SCOTUS interpretation.

robertpaulsen said: So who are "the people"? The first part says they are those who form the state Militia.

So you maintain that the pre-existing right to keep and bear arms is not what is protected, but rather a constitutionally narrowed right of the militia to keep and bear arms?

Why didn't the Founders simply establish a right to keep and bear arms for Militias? Why the reference to a pre-existing right of the people? By your reasoning, one implied result of the Second Amendment, by omission, is the power of the federal government to infringe the right of the people to keep and bear arms EXCEPT for purposes related to Militia service.

"It says so such a thing. Good Lord, that's a stupid comment, even for you."

As used in the U.S. Constitution, "the people" referred to a particular group. Or maybe you think it meant every individual?

"So you maintain that the pre-existing right to keep and bear arms is not what is protected, but rather a constitutionally narrowed right of the militia to keep and bear arms?"

You are, of course, referring to the second amendment?

The vast majority of the courts have ruled that it protects a collective right -- the right of individuals to keep and bear arms as part of a Militia shall not be infringed by the federal government. That's what I'm saying.

As to this individual pre-existing right to keep and bear arms you're referring to, that right is protected by each state's constitution.

So you’re saying that because some courts, government employees, make a finding which favors the government, it MUST be right, even if it cannot be squared with the merits, as interpreted by a non-government-employee of average intelligence???

I’m not posting this to take a position the issue as much as to chide you for relying on court findings as if they could supersede the merits.

"Why didn't the Founders simply establish a right to keep and bear arms for Militias?"

Do you mean Milita members? They did. The second amendment protects that right from federal infringement.

"Why the reference to a pre-existing right of the people?"

Again, who are "the people"? You refuse to answer that question. If you answered it, you'd know. But you can't because it would demonstrate that I'm correct.

"By your reasoning, one implied result of the Second Amendment, by omission, is the power of the federal government to infringe the right of the people to keep and bear arms EXCEPT for purposes related to Militia service."

Assuming they had the power to do so, of course. Do they have that power or are you just rambling?

As used in the U.S. Constitution, "the people" referred to a particular group.

Yea, citizens

Or maybe you think it meant every individual?

Every individual citizen. And don't bother, I read your crap all morning. The issue of white, male property owners was settled long ago. What foolishness. And now "the people" means militia men? Utter nonsense. If the authors meant "the right of militia members to keep and bear arms shall not be infringed" they would have damn well said so. But they didn't, your ridiculous linguistic gymnastics notwithstanding.

"Anyone who doesn’t work for the government, and to a lesser extent, even those people as respects their private lives, because they’re citizens too."

Thank you for your response. Because you had the guts to answer (unlike some of the spineless wonders on this thread), I'll be nice.

When the second amendment was written, it only protected the right for white male citizens, 18-45 years of age. Non-whites (slaves) were not protected. Non-citizens, women, and children were not protected under the second amendment.

"The people" in the second amendment did not mean "all persons". When the Founding Fathers wanted to protect the right of an individual, they referred to "person", or "citizen" or "he/him".

Actually, I like my definition better. Citizens NOT employed by the government Why would government employees need their rights protected Constitutionally, except FROM that same government, as respects their own private lives?

So your belief is that since in that day and age, free adult males were considered to some extent the repositories of rights on behalf of their families, that the 2A was not then intended to apply to all citizens? I’m skeptical, but your opinion is at least somewhat arguable. However, it still seems to me to be irrelevant, because pretty much every other right granted “the people” is assumed to apply to citizens in general. Suffrage, etc. One could make the argument that that’s a mistake, but nevertheless, there it is, and I can’t see why bearing arms should be the lone exception to that trend.

"So you’re saying that because some courts, government employees, make a finding which favors the government, it MUST be right, even if it cannot be squared with the merits, as interpreted by a non-government-employee of average intelligence???"

I'm simply saying that if the U.S. Supreme Court ever decides to look at the second amendment, they are going to be heavily influenced by past lower court decisions.

There are 11 Circuit Courts plus the DC Circuit. Out of those twelve courts, ten have ruled a collective right. Of the 30-40 second amendment cases heard by all those courts, only two were ruled an individual right.

Now, you're asking if those ten different Circuit Courts ruling in those 30-something different gun cases could all be wrong and the other two were right? Sure. That's possible.

Well, if the point you’re making is with respect to what’s likely to happen, you’re probably right, and if so, that’s most unfortunate in my opinion, because it would empower the government, which necessarily comes at the expense of those of us with honest jobs.

"Every individual citizen. And don't bother, I read your crap all morning. The issue of white, male property owners was settled long ago."

Well, at least you agree that "the people" doesn't mean "all persons". I'll settle for that from you.

1. The militia act of 1792 was moot as soon as it was employed, just for the fact that it was never enforced; in practice anyone who could grab a gun could fight and did, occasionally some in male drag, I might add. Any war that was ever fought by the US included participants not within those age groups, particularly the Spanish-American and Civil wars) to WWII. My own father, who joined the US Army in 1939 at the age of 14 , become a highly decorated paratrooper. ALL former military, further, are considered in the inactive reserves.

2. The real intent of the Founding Fathers on gun ownership was dealt with at length and very specifically by James Madison in the Federalist Papers, as well as by others of that period, including Jefferson.
If the intent of the Constitution were upheld there would be NO gun laws, except those restricting felons.

In my honest opinion virtually all gun laws are unconstitutional and the states are forbidden from writing and enforcing those of their own by virtue of the Constitution.

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